The Oath (22 page)

Bill Clinton nominated her to the Second Circuit two years later, and she soon became known—even to Barack Obama, whom she had never met—as the Democrats’ leading Supreme Court justice-in-waiting.

But that was only part of the story, especially for Obama. Although Sotomayor flourished on the Second Circuit, she kept her ties to the Bronx. She remained a frequent visitor to her grammar school and high school; she was godmother of five children,
including the son of her dentist; she gave talks to Hispanic student groups all over the country. As a public figure, Sotomayor had a stump speech of sorts. The one she gave in 2001 at the University of California, Berkeley, was typical. These kinds of inspirational talks often consist of banalities, but not Sotomayor’s. Her talk was serious and substantive—with a quietly radical message.

Sotomayor began with the customary paean to her roots, in her case as a “Nuyorican.” “For me, a very special part of my being Latina is the
muchos platos de arroz, gandules y pernil
—rice, beans, and pork—that I have eaten at countless family holidays and special events,” she said. “My Latina identity also includes, because of my particularly adventurous taste buds,
morcilla
—pig intestines—
patitas de cerdo con garbanzos
—pigs’ feet with beans—and
la lengua y orejas de cuchifrito
—pigs’ tongue and ears.”

Soon enough, Sotomayor took aim at one of the hardest questions surrounding affirmative action.
Why
does it matter if there are more women, or minorities, on the bench? She quoted a former colleague on the Manhattan federal trial court, Miriam Cedarbaum, who “sees danger in presuming that judging should be gender or anything else based. She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote.” Sotomayor went on, “Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.”

But that wasn’t Sotomayor’s opinion. She embraced the view that women and minorities brought something different to the bench. “Our
experiences as women and people of color affect our decisions,” she said. “The aspiration to impartiality is just that—it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” She continued, “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.” But in the crucial passage in the speech, Sotomayor said she
disagreed
with O’Connor’s view. “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” According to Sotomayor, gender and ethnicity among judges made a substantive difference in results. “Personal experiences affect the facts that judges choose to see,” she said. “My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

Sotomayor, Wood, Kagan, and Napolitano had all submitted enormous volumes of material, including all their public remarks, to the White House as part of the vetting process. For Sotomayor, the “wise Latina” speeches, as they became known, immediately jumped out as problems. But how big?

Obama wanted the new justice confirmed in time for the first Monday in October 2009, which meant that he could not tarry in making his choice. The Senate went into recess in August, so the hearings had to take place by the end of July. Souter had quit on May 1; Obama needed to nominate someone by the end of the month. All four candidates came to the White House for interviews with the president; Kagan and Napolitano received the clear message, from Obama and others, not to get their hopes up. It wasn’t their time.

Wood or Sotomayor? An abortion problem or an affirmative action problem? By that measure, Wood had the advantage. In rough terms, the public was about 60 percent pro-choice; on affirmative action, support
was closer to 30. (There are wide variations depending on how the poll questions are asked.) As Obama knew better than most people, the acceptable discourse about race and identity was fairly narrow. It was fine to say, as Sotomayor did, that it was important for women and minorities to have role models. It was acceptable, too, to say that diversity was a strength in any institution. But O’Connor, with her understanding of public opinion, knew the limits of the idea. It was not acceptable to say that men and women judges (or blacks and minority judges) actually reached different, or better, opinions in cases because of their backgrounds. But that was what Sotomayor had said in her speeches—repeatedly.

Sotomayor had another problem on that score. As it happened, the Supreme Court had just heard an appeal from the Second Circuit on an affirmative action case where Sotomayor had been on the panel. In 2003, a group of New Haven firefighters took a standardized test for promotions. Whites passed the test at double the rate of blacks, and the local Civil Service Board, worried about being sued by the failed black applicants, invalidated the test. Instead, nineteen white firefighters and one Hispanic who passed the original test sued for their promotions. In a brief order, Sotomayor and two other judges on the Second Circuit ruled against the white firefighters and upheld the decision to throw out the test. White House soundings on Capitol Hill produced almost no support, even from liberals, for Sotomayor’s position. “Diversity” was one thing, but blacks and whites should have to play by the same rules or, in this case, take the same test.

Obama sought advice from Biden, Craig, Butts, Susan Davies, and Biden’s chief of staff, Ron Klain, who had worked on Ginsburg’s and Breyer’s nominations in the Clinton White House and was Biden’s top aide in the Senate during the Clarence Thomas hearings. No staffer had more experience with Supreme Court nominations than Klain. There were sixty Democratic votes in the Senate. Either Wood or Sotomayor was likely to be confirmed. Obama simply had to make his choice.

The decision revealed a great deal about Obama. In his interview with Sotomayor, the president took particular note of how she had stayed in touch with her former neighborhoods in the Bronx. He sensed an authenticity in her, and no one had to remind the president of the political appeal of appointing the first Hispanic to the Supreme Court. If he had a chance to make history in this way, with an impeccably qualified nominee, Obama was going to do it.

There was something more, too. In a way, Obama thought that Sotomayor’s “problems” were also advantages. It was impolitic to say that race and ethnicity mattered, but the first black president, far more than most, knew how much they did. Obama was often described by others as “postracial,” but he didn’t see himself that way. After all, as a young man Obama had written an entire book about coming to terms with his racial identity. Around the same time as he was making his choice for the Supreme Court, Obama made an uncharacteristically indiscreet revelation. He was asked about an incident where Henry Louis Gates Jr., a renowned Harvard professor and friend of Obama’s, was arrested on the front steps of his home in Cambridge. Gates was returning from a long overseas trip and found the front door to his home jammed. He struggled to open it, and a neighbor called the police, thinking a burglary was in progress. The police came and exchanged words with Gates, and he was arrested.

A few days later, a reporter asked Obama for his opinion. “Now, I’ve—I don’t know, not having been there and not seeing all the facts, what role race played in that,” Obama said. “But I think it’s fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home. And number three, what I think we know separate and apart from this incident is that there is a long history in this country of African Americans and Latinos being stopped by law enforcement disproportionately. That’s just a fact.” Obama quickly came to regret his remarks, which were indeed ill-informed about the specifics of the incident. (By way of apology, in the summer, he held a “beer summit” at the White House with Gates and James Crowley, the Cambridge police sergeant who made the arrest.) Still, the Gates incident was revealing. Obama had never been arrested, but he knew what it was like to be a black man facing the police. So, in a different way, did Sonia Sotomayor. That was more than fine with the president.

Heading into Memorial Day weekend, Sotomayor had been told she was the likely nominee but that she would hear the official word from the president probably on Monday. (White House officials had consulted several doctors and were assured that Sotomayor’s diabetes would not prevent her from living a normal life span.) On the afternoon of the holiday, Obama called Klain and asked him to run the negatives on Sotomayor one more time. Klain rehearsed the expected attacks: intemperate,
too liberal, too pro–affirmative action. Obama was unpersuaded by the case against her and told Klain he would make the formal offer that night.

In the meantime, Sotomayor—nervous and unable to tell anyone what was going on—went to her chambers on Memorial Day, if only to fill the time. Relatives called for updates, and there were none. Finally, she decided to return to her apartment in Greenwich Village and pack for the trip to Washington—just in case. At 8:10 p.m., Obama called her cell phone. When he made the offer official, Sotomayor began to cry.

“I want you to make me two promises,” Obama said. “First, you have to remain the person you are. And second, to stay connected to your community.” Happy to oblige, the nominee told the president.

Obama and his staff had been so caught up in the details of the selection process that they weren’t prepared for what happened the next day, when he announced Sotomayor’s nomination in the East Room. There were people, lots of them, weeping with joy. Many of them did not even know Sotomayor personally. Supreme Court nominations are cultural markers in the United States—Louis Brandeis in 1916, Thurgood Marshall in 1967, Sandra Day O’Connor in 1981. The dates are not coincidental, for they mark coming-of-age moments for Jewish Americans, African Americans, and women. May 26, 2009 was such a date for Hispanic Americans. In a White House hallway afterwards, Obama told Ron Klain, his designated naysayer, “I feel great about this now.”

As recently as the nineties, Supreme Court nominees could be eased into the confirmation process, first with a round of courtesy calls on a few senators and then with several weeks to prepare for their hearings. Harriet Miers put an end to that. Miers had been George W. Bush’s private attorney and then his White House counsel before he nominated her to replace Sandra Day O’Connor in 2005. (Bush initially named Roberts to take O’Connor’s place, but then Rehnquist’s death opened the chief justice position for Roberts.) Right after Miers’s nomination, her handlers at the White House scheduled a few informal meetings with senators, who took the opportunity to test her knowledge on a
variety of issues. Miers performed disastrously, and she was soon forced to withdraw as a nominee.

So there was nothing casual about Sotomayor’s preparations for her first meetings. (She eventually met with ninety-two senators, a substantial increase from prior practice.) Sotomayor had been a judge for the past seventeen years, and she was more used to asking questions than answering them. Plus, her docket in New York had not included some subjects that were closest to the hearts of the senators—like national security, gun rights, and the death penalty. She needed to study up, and fast.

Like Cassandra Butts, who was still nominally the deputy counsel in charge of judicial nominations, Sotomayor had gone to a prestigious law school, but she had not operated in the universe of Supreme Court law clerks. The nominee felt an edge of condescension from what she called “the bright young things” on Greg Craig’s staff. Matters were not helped on June 8 when Sotomayor tripped at LaGuardia Airport and broke her ankle. She was determined to keep to her schedule of meetings on crutches—and to avoid using painkillers—but it wasn’t easy. Eventually Sotomayor agreed to take some Aleve, but she remained in pain for weeks. (In keeping with recent tradition, her future colleagues on the Supreme Court greeted her nomination with a frosty silence. No one called. Only Ginsburg, who as the justice responsible for the Second Circuit had known Sotomayor for years, wrote her a congratulatory note.)

As her hearings approached, Sotomayor’s ambitions narrowed. This was not about explaining the Constitution or even winning arguments but only about getting confirmed. It did not help that after her nomination, but before her hearing, the Supreme Court voted 5–4 to overturn her decision in the New Haven firefighter case.

As Sotomayor had often said, her own career was a monument to the success of affirmative action. She had a Hispanic and female take on the Constitution. But at her hearings, she steered away from that controversial territory. Instead, Sotomayor’s opening statement was a monument to banality. “In the past month, many senators have asked me about my judicial philosophy,” she said. “It is simple: fidelity to the law. The task of a judge is not to make the law—it is to apply the law.” Of course, all justices believe they are displaying fidelity to the law; the question is how they interpret the law. Like other nominees since Robert Bork,
Sotomayor ducked questions about substantive issues—abortion and gun control especially—but her nonresponsiveness exceeded the norm. The Democrats had sixty votes; Sotomayor tried to run out the clock without making a mistake.

On the “wise Latina” issue, Sotomayor caved. When questioned closely on the matter by Jeff Sessions, the senior Republican on the committee, she first dodged the central contention of her speeches: “My record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result.”